Britax Data Processing Addendum

This Data Processing Addendum (“Addendum”) shall apply to the services provided pursuant to the Agreement signed between the parties incorporating these terms.

Capitalized terms used in this Addendum not defined herein shall have the same meanings as in the Agreement, except that any conflicts or inconsistencies between this Addendum and the Agreement shall be interpreted in favor of this Addendum.

  1. Definitions:

    “CCPA” means the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq, and the California Privacy Rights Act of 2020, as amended, including any implementing regulations.

    “CDPA” means the Connecticut Data Privacy Act, S.B. 6, 2022 Gen. Assemb., Reg. Sess. (Conn. 2022), as enacted.

    “CPA” means the Colorado Privacy Act, CO St § 6-1-1301 et seq, as amended, including any implementing regulations.

    “Business” shall have the meaning set out in the applicable Data Protection Laws and shall include a “Controller,” as defined in the GDPR, and any similar terms used by the Data Protection Laws.

    “Consumer” shall have the meaning set out in the applicable Data Protection Laws, and shall include “Data Subjects,” as defined in the GDPR, and any similar terms used by the applicable Data Protection Laws to describe the natural person who is identified or identifiable by Personal Data.

    “Contractor” means the relevant party contracted by Britax for services pursuant to the Agreement.

    “Customer” means the relevant Britax entity who executed the Agreement.

    “Data Protection Laws” means all laws and regulations of any state or country, as amended or replaced from time to time, applicable to each respective Party relating to the Processing of Personal Data applicable to the Agreement, including, but not limited to, where applicable, CCPA, CDPA, CPA, GDPR, UDPA, and VCDPA.

    “EEA” means, for the purpose of this Addendum, the European Economic Area and the United Kingdom.

    “GDPR” means the General Data Protection Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016, on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications).

    “Personal Data” shall have the meaning set forth in the applicable Data Protection Laws, including “Personal Information” as defined under CCPA, and means any information relating to, or that can be reasonably related to, an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

    “Potential Security Incident” means (i) any act, omission, or otherwise incident that compromises, or may potentially compromise, the security, confidentiality, or integrity of Personal Data, and especially includes any security incident that requires (or could reasonably be considered to require) Customer to notify impacted individuals, law enforcement, and/or regulatory authorities; or (ii) receipt of a complaint in relation to the privacy and data security practices of Contractor ; or (iii) a breach or alleged breach of the Agreement or this Addendum relating to such privacy and data security practices; or (iv) a breach, or potential breach, of security leading, or that may potentially lead, to accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed.

    “Processing” or “Process” means any operation or set of operations which is performed on Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

    “Sell” or “Sale” or “Selling” shall have the meaning set out in the applicable Data Protection Laws.

    “Service Provider” shall have the meaning set out in any applicable Data Protection Laws, and shall include a “Processor,” as defined in GDPR and the applicable Data Protection Laws, and a “Contractor” as defined in CCPA (if applicable), and any similar terms used by the applicable Data Protection Laws.
    “Services” means any services provided by Contractor or the use of Personal Data by Contractor as described further in the Agreement.

    “Share” or “Sharing” shall have the meaning set out in the applicable Data Protection Laws.

    “Sub-Processor” means any person or entity appointed by or on behalf of Contractor to Process Personal Data on behalf of Customer in connection with the Agreement.

    "Supervisory Authority" means any local, state, provincial, or national data protection authority responsible for enforcing applicable Data Protection Laws as well as supervising, as the case may be, Customer and Contractor.

    “Third Party” shall have the meaning set out in the applicable Data Protection Laws.

    “UCPA” means the Utah Consumer Privacy Act, S.B. 227, 2022 Gen. Sess. (Utah 2022), as enacted.

    “VCDPA” means the Virginia Consumer Data Protection Act, VA St. § 59.1-571, as amended, including any implementing regulations.

    Capitalized terms used but not defined herein or in the Agreement have the meanings attributed to them in the applicable Data Protection Laws.

  2. Contractor Obligations
    1. Customer is disclosing the Personal Data to Contractor for the limited and specified purposes set forth within the Agreement.
    2. Contractor acknowledges and agrees that:
      1. Customer is the Business and Contractor is the Service Provider of any Personal Data Processed by Contractor pursuant to the Agreement.
      2. Customer shall not be liable under this Addendum for disclosure of Personal Data to Contractor in compliance with the applicable Data Protection Laws, provided that Customer has no actual knowledge, or reason to believe, that Contractor intends to commit a violation under any applicable Data Protection Law.
      3. Contractor shall adopt reasonable security procedures and practices to assist Customer in complying with the Data Protection Laws, taking into account the nature of the Processing to protect the Personal Data received from Customer from unauthorized or illegal access, destruction, use, modification, or disclosure.
      4. Contractor has provided Customer with all information and documentation necessary showing that Contractor uses and will use Personal Data in compliance with applicable Data Protection Laws.
      5. Contractor shall Process Personal Data only for the purpose of performing the Services and only in accordance with the Customer’s documented instructions (including with regard to transfers), as described in the Agreement, unless required otherwise by any Data Protection Laws to which Contractor is subject, in which event Contractor shall inform Customer of Contractor ’s legal obligation before processing, to the extent permitted by applicable laws.
      6. Contractor shall not retain, use, or disclose the Personal Data outside of the direct business relationship between Customer and Contractor .
      7. Contractor shall only use the Personal Data for the specific purposes and services under the Agreement, which are as follows: for talent Acquisition activities for assigned positions across Britax global entities.
      8. To the extent Contractor is providing advertising or marketing services, as specified in the Agreement and this Section 2(c)(ii) and (iii), Contractor shall not provide or perform any Cross-Contextual Behavioral Advertising.
      9. Contractor shall Process Personal Data only for the term of the Agreement.
      10. Contractor shall only Process the Personal Data of the following categories of Consumers: potential employment candidates.
      11. Contractor shall only Process the following types of Personal Data: name, address, IP address, phone number.
      12. Upon termination or expiration of the Agreement for any reason or at any time, Contractor shall promptly comply with any request from Customer requiring Contractor to return or delete Personal Data (including any existing copies), unless applicable Data Protection Laws require retention of the Personal Data. Contractor further agrees that after such retention period expires, Contractor shall delete said Personal Data. Contractor shall certify in writing to Customer within thirty (30) days of the request, termination, or expiration of the Agreement, that such Personal Data has been returned or provided to Customer and/or disposed securely. Contractor shall comply with all reasonable directions provided by Customer with respect to the return, provision, or disposal of Personal Data.
      13. Contractor shall provide Customer with full cooperation and assistance as the Customer may require to comply with its obligations as a Business, including in relation to data security; Potential Security Incidents; data protection impact assessments or risk assessments; and consulting with and responding to applicable government authorities and/or Supervisory Authorities.
      14. If Contractor determines that it can no longer meet its obligations under applicable Data Protection Laws, Contractor shall notify Customer within five (5) business days after making such determination.
      15. Customer has the right to take reasonable and appropriate steps to ensure that Contractor Processes the Personal Data pursuant to the Agreement in a manner consistent with the Data Protection Laws, including, but not limited to, ongoing manual reviews and automated scans of Contractor ’s system and regular assessments, audits, or other technical and operational testing at least once every twelve (12) months.
      16. Customer has the right, upon notice to Contractor , to take reasonable and appropriate steps to stop and remediate Contractor ’s unauthorized Processing of Personal Data, including, but not limited to, requiring Contractor to provide documentation that verifies that Contractor is no longer Processing Personal Data of a Consumer that has made a valid request to delete to Customer.


    3. Contractor further represents and warrants that it:
      1. Shall comply with all applicable Data Protection Laws in the Processing of Personal Data.
      2. Shall only Process the Personal Data in compliance with the Data Protection Laws and all other applicable laws relating to Personal Data and privacy.
      3. Shall not to Sell or Share Personal Data it receives from or on behalf of Customer.
      4. Shall not combine the Personal Data received from Customer pursuant to this contract with any other Personal Data Contractor receives from or on behalf of another person or persons, or collects from its own interaction with the consumer, unless such combination of data complies with all applicable Data Protection Laws.
      5. Shall protect Personal Data in accordance with requirements under the applicable Data Protection Laws, including by implementing and maintaining appropriate administrative, technical, physical, and organizational measures against the unauthorized or unlawful access, acquisition, disclosure, alteration, misuse, damage, or otherwise Processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data, that are no less rigorous than required the applicable Data Protection Laws and accepted industry practices, and shall ensure that all such safeguards comply with applicable Data Protection Laws, as well as the terms and conditions of the Agreement and this Addendum. Contractor will regularly monitor compliance with these measures and will not materially decrease the overall security of the Services during any term of the Agreement.
      6. Shall take account of the risks from a Potential Security Incident that are presented by the Processing of Personal Data.
      7. Shall immediately inform Customer if, in its good faith opinion, an instruction from Customer infringes any applicable Data Protection Law or any other applicable laws relating to data protection and privacy.

  3. Sub-Processors and Agents
    1. Contractor shall ensure that all natural persons or entities, such as agents, employees, contractors, or Sub-Processors, acting under the authority of Contractor , who may have access to Personal Data:
      1. Do not Process Personal Data except on instructions from Customer;
      2. Are strictly limited to those who need to know or access Personal Data as necessary for the purposes of the Agreement;
      3. Comply with all applicable laws in the context of their duties;
      4. Are informed of the confidential nature of the Personal Data;
      5. Are subject to confidentiality undertakings or professional or statutory obligations of confidentiality no less than required by Customer under applicable laws;
      6. Have undertaken training in all applicable laws relating to handling Personal Data;
      7. Are aware both of Contractor 's duties and their personal duties and obligations under such laws and the Agreement; and
      8. Have been determined reliable by Contractor to have access to Personal Data.


    2. Contractor shall be responsible for any unauthorized Processing of Personal Data by all persons or entities acting under its authority.

  4. Sub-Processor Authorization
    1. Notwithstanding any other provisions of the Agreement, Contractor may not authorize any third party or Sub-Processor to Process Personal Data without Customer’s prior written authorization, and in all cases subject to Contractor providing reasonable prior notice to Customer of the identity and location of the Sub-Processor and a description of the intended processing to be carried out by the Sub-Processor to enable Customer to evaluate any potential risks to the privacy and security of Personal Data and have an opportunity to object to Contractor ’s proposed Sub-Processor(s).
    2. Contractor shall remain solely responsible and liable to Customer for any breach of the terms of the Agreement and this Addendum by a Sub-Processor and/or other subsequent third-party processors appointed by and acting under the authority of Contractor as if such acts or omissions were by Contractor . Contractor must impose the same data protection duties and obligations applicable to Contractor as required by the Agreement and this Addendum on the Sub-Processor by way of a contract or other legal act. Contractor shall provide to Customer such contracts with Sub-Processors as Customer may request from time to time.

  5. Transfer of Personal Data
    1. Contractor confirms that, as of the date of this Addendum, and throughout the term of the Agreement, Contractor shall store and process any Personal Data within its possession or control within the EEA.
    2. If any Personal Data is Processed concerning a Consumer located in the EEA, Contractor shall not transfer the Personal Data outside the EEA without the prior written consent of Customer. Contractor shall not Process any Personal Data in a country with laws that would subject Customer to any responsibilities or obligations greater than the laws of the country in which the Personal Data originates. In the event Customer consents to such transfer, Contractor will comply with the requirements of the applicable Data Protection Laws to ensure that adequate safeguards are put in place to protect the Personal Data. This Section 5 only applies to the transfer of Personal Data from the EEA to a third country that has not been deemed adequate by the European Commission. Contractor shall execute with Client the standard data protection clauses (“Standard Contractual Clauses”), attached hereto as “Exhibit B,” and/or any other applicable international data transfer agreement, or as approved by the European Commission pursuant to GDPR and/or the United Kingdom, if such transfer out of the EEA is necessary.

  6. Consumer Requests
    1. Taking into account the nature of the Processing and the Personal Data available to Contractor , Contractor shall assist Customer by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation, as reasonably understood by Customer, to respond to requests to exercise Consumers’ rights under the applicable Data Protection Laws.
    2. Contractor shall promptly, but no later than three (3) days following receipt, notify Customer if it receives a request from a Consumer seeking to exercise their rights in relation to the Consumer’s Personal Data, and provide Customer with full cooperation and assistance in relation to any such request.
    3. Contractor shall ensure that Contractor and all Sub-Processors, if any, do not respond to a Consumer request except on the documented instructions of Customer or as required by applicable laws to which Contractor is subject, in which case Contractor shall, to the extent permitted by applicable laws, inform Customer of that legal requirement before Contractor responds to the request.
    4. Contractor shall immediately, but no later than twenty-four (24) hours following receipt, notify Customer, and thereafter provide Customer with full cooperation and assistance, in relation to any complaint, notice, communication, or Consumer request Contractor receives which relates directly or indirectly to the Processing of Personal Data by Contractor or to either Party's compliance with the Data Protection Laws in relation to the Services, including, but not limited to, requests to access, delete, correct of a Consumer’s Personal Data.

  7. Confidentiality
    1. Contractor shall ensure that Contractor and all Sub-Processors do not disclose Personal Data to any Consumer or to a third party other than at the prior written consent or request of Customer or as provided for in the Agreement, or as otherwise required by applicable laws.
    2. Customer (or its appointed representatives bound by appropriate obligations of confidentiality) is entitled, on giving at least three (3) days' notice to Contractor , to the following:
      1. Customer may inspect all Customer facilities, equipment, documents, and electronic data relating to the processing of the Personal Data by Contractor relating to the Agreement.
      2. The results of any audit by or on behalf of Contractor performed that assesses the effectiveness of Contractor 's information security program as relevant to the security and confidentiality of Personal Data Processed pursuant to the Agreement during the course of the Agreement, including but not limited to a network-level vulnerability assessment performed by a recognized third-party audit firm based on recognized industry best practices an SSAE 16 audit report, or reports relating to its ISO/IEC 27001 certification;
      3. Upon Customer’s request, all information necessary to demonstrate compliance with this Addendum and shall allow for and contribute to audits, including inspections, by Customer or an auditor mandated by Customer to confirm Contractor 's compliance with this Addendum, as well as any applicable laws, regulations, and industry standards in relation to the Processing of the Personal Data by Contractor.

    3. The requirement under Section 7(b) to give notice will not apply if Customer believes that Contractor is in breach of any of its obligations under this Addendum.

  8. Contractor ’s Security Obligations
    1. Contractor agrees to comply with the following security obligations:
      1. Contractor will monitor all Services including monitoring its systems for potential areas where security could be breached, applying all updates, bug fixes, enhancements, new releases, new versions, and patching security holes as patches are available or released.
      2. Upon Customer’s request, Contractor shall provide Customer with reasonable cooperation and assistance needed to fulfill Customer’s obligation under applicable Data Protection Laws to carry out any data protection impact assessments, and prior consultations with governmental bodies, related to the Agreement, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Contractor .

    2. In the event of a Potential Security Incident, Contractor shall:
      1. Notify the Customer as soon as possible, but in no event later than as required by law or industry standard practice.
      2. Provide Customer with sufficient information to allow Customer to meet any obligations to report or inform Consumers of the Potential Security Incident under the Data Protection Laws.
      3. Immediately following Contractor 's notification to Customer of a Potential Security Incident, Contractor shall coordinate with the Customer to investigate the Potential Security Incident.
      4. Contractor agrees to fully cooperate with Customer in Customer’s handling of the matter and take such reasonable commercial steps as directed by Customer to assist in the investigation, mitigation, and remediation of each such Potential Security Incident, including, without limitation, making available all relevant records, logs, files, data reporting, and other materials required to comply with applicable law, regulation, industry standards, or as otherwise reasonably required by Customer.
      5. At its own expense, investigate the Potential Security Incident and identify, prevent, and mitigate the effects of any such Potential Security Incident.
      6. In the event any Personal Data becomes damaged, corrupted, or unusable, Contractor will restore such Personal Data at its own expense.
      7. Contractor shall not inform any third party of any Potential Security Incident without first obtaining Customer’s prior written consent, other than to inform a complainant that the matter has been forwarded to Customer. Customer shall have the sole right to determine: (i) whether notice of the Potential Security Incident is to be provided to any individuals, regulators, law enforcement agencies, consumer reporting agencies, or others as required by law or regulation, or otherwise in Customer’s discretion; and (ii) the contents of such notice, whether any type of remediation may be offered to affected persons, and the nature and extent of any such remediation; if Customer determines that notice of the Potential Security Incident is to be provided, Contractor shall make all such required notifications at the direction of Customer, at Contractor 's own cost and expense, including the cost of credit monitoring and any other remediation or requirements of such notifications;
      8. Maintain and preserve all documents, records, and other data related to any Potential Security Incident.
      9. Fully cooperate at its own expense with Customer in any litigation, investigation, or other action deemed reasonably necessary by Customer to protect its rights relating to the use, disclosure, protection, and maintenance of Personal Data.

  9. Indemnification

    Contractor shall indemnify, keep indemnified, and hold harmless Customer, and Customer’s parent Customer and its subsidiaries, affiliates, and their respective officers, directors, employees, agents, successors, and permitted assigns (each, a “Customer Indemnitee”) from and against all liability, loss, damages, injury, costs, actions, deficiencies, judgments, interests, awards, penalties, fines, and expenses (including attorney’s fees and other legal expenses, the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers) of whatever nature awarded against or incurred or paid by any Customer Indemnitee as a result of or in connection with any breach by Contractor of the obligations in this Addendum.

  10. Material Breach

    Contractor ’s failure to comply with any of the provisions of this Addendum is a material breach of the Agreement. In such event, Customer may terminate the Agreement effective immediately upon written notice to Contractor without further liability or obligation to Contractor .


STANDARD CONTRACTUAL CLAUSES

(CONTROLLER-PROCESSOR) MODULE TWO


Section I

Clause 1

Purpose and scope

  1. The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country.

  2. The Parties:
    1. the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and
    2. the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”)
    have agreed to these standard contractual clauses (hereinafter: “Clauses”).
  3. These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
  4. The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

    5. Clause 2

    Effect and invariability of the Clauses

    1. These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
    2. These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

    Clause 3

    Third-party beneficiaries

    Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

    1. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
    2. Clause 8.1(b), 8.9(a), (c), (d) and (e);
    3. Clause 9 - Clause 9(a), (c), (d) and (e);
    4. Clause 12(a), (d) and (f);
    5. Clause 13;
    6. Clause 15.1(c), (d) and (e);
    7. (viii) Clause 16(e);
    8. Clause 18(a) and (b).

  5. Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

    6. Clause 4

    Interpretation

    Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

  6. These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
  7. These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

    8. Clause 5

    Hierarchy

    In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

    Clause 6

    Description of the transfer(s)

    The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.


    Clause 7 - Optional

    Docking clause

    An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.

  8. Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
  9. The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.


    10. SECTION II – OBLIGATIONS OF THE PARTIES

    Clause 8

    Data protection safeguards

    The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.

    8.1 Instructions

    The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

  10. The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

    11. 8.2 Purpose limitation

    The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.

    8.3 Transparency

    On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

    8.4 Accuracy

    If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

    8.5 Duration of processing and erasure or return of data

    Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

    8.6 Security of processing

    The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

  11. The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
  12. In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
  13. The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent Supervisory Authority(ies) and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

    14. 8.7 Sensitive data

    Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

    8.8 Onward transfers

    The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

    1. the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
    2. the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
    3. the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
    4. (iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

    Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

    8.9 Documentation and compliance

    The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.

  14. The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
  15. The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
  16. The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
  17. The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

    18. Clause 9

    Use of sub-processors


    The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least five (5) business days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

  18. Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
  19. The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
  20. The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
  21. The data importer shall agree a third-party beneficiary clause with the sub-processor whereby - in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent - the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

    22. Clause 10

    Data subject rights

    The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.

  22. The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
  23. In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

    24. Clause 11

    Redress

    The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

  24. In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
  25. Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
    1. lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
    2. refer the dispute to the competent courts within the meaning of Clause 18.
  26. The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
  27. The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
  28. The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

    29. Clause 12

    Liability

    Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

  29. The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
  30. Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
  31. The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
  32. Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
  33. The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
  34. The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

    35. Clause 13

    Supervision

    The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.

  35. The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.


    36. SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES


    Clause 14

    Local laws and practices affecting compliance with the Clauses

    The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.

  36. The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
    1. the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
    2. the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards ;
    3. any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
  37. The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
  38. The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
  39. The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
  40. Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

    41. Clause 15

    Obligations of the data importer in case of access by public authorities

    15.1 Notification

    The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:

    1. receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
    2. becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
  41. If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
  42. Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
  43. The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
  44. Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

    45. 15.2 Review of legality and data minimisation

    The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

  45. The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
  46. The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.


    47. SECTION IV – FINAL PROVISIONS

    Clause 16

    Non-compliance with the Clauses and termination

    The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

  47. In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
  48. The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
    1. the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
    2. the data importer is in substantial or persistent breach of these Clauses; or
    3. the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

    49. In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

  49. Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
  50. Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

    51. Clause 17

    Governing law

    These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree tha tthis shall be the law of Sweden.

    Clause 18

    Choice of forum and jurisdiction

    Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

  51. The Parties agree that those shall be the courts of Sweden.
  52. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
  53. The Parties agree to submit themselves to the jurisdiction of such courts.
  1. Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295 of 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision […].
  2. The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union's internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.
  3. This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.
  4. As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.